Democrats want to pack the Supreme Court. Ooooh, how they want pack it. It was a major campaign issue during the 2020 primaries, but Biden played coy on the issue during the general election, ultimately leaving the door open to Supreme Court packing.
In response to Democrat protests over the nomination and fast approval of Amy Coney Barrett to the Supreme Court, Biden left the door open:
GS: Well, right now it looks like they’re going to have a vote around Halloween. So if they vote on it, it’s before the election. If they vote on before the election, you are open to expanding the court.BIDEN: I’m open to considering what happens from that point on.GS: You know you said so many times during the campaign, all through the course of your career, it’s important to level …?BIDEN: Well, it is, but George, if I, if I say no matter what answer I gave you, if I say it, that’s the headline tomorrow, it won’t be about what’s going on now. The improper way they’re proceeding.GS: But don’t voters have a right to know where you are.BIDEN: They do have a right to know what I stand and they’ll have a right to know where I stand before they vote.GG: So you’ll come out with a clear position before election day.BIDEN: Yes. Depending on how they handle this.
[Video via Curtis Houck Twitter]
Biden took the first step toward court packing by appointing a Commission to consider various alternatives. Biden did not request a recommendation of which way to go, but a favorable analysis of court packing would have given life to Democrat efforts.
The Commission just issued its report, and it punted:
The bipartisan commission appointed by President Biden to study possible changes to the federal judiciary unanimously approved a final report on Tuesday that flagged “profound disagreement” among its members over the issue that led to the panel’s creation: calls to expand or “pack” the Supreme Court with additional justices.
By a vote of 34 to 0, the commission approved a 288-page report that offered a critical appraisal of arguments for and against that and many other ideas for changes to the Supreme Court, including imposing 18-year term limits on justices and reducing their power to strike down acts of Congress.
But the group did not offer specific recommendations….
Here’s the Executive Summary section as to court “expansion” (emphasis added):
Chapter 2 examines proposals to expand or otherwise alter the current structure of the Supreme Court. The Chapter begins by presenting a brief history of past efforts to alter the sizeof the Court,dating back to the nineteenth century.It then proceeds to considerthe legality of Court expansion, concluding based on text, structure, and history that Congress has broad authority to modify the Court’s size.The Chapter then describes arguments made in the public debate both for and against Court expansion. Supporters contend that Court expansion is necessary to address serious violations of norms governing the confirmation process and troubling developments in the Supreme Court’s jurisprudence that they see as undermining the democratic system. Opponents contend that expanding—or “packing”—the Court would significantly diminish its independence and legitimacy and establish a dangerous precedent that could be used by any future political force as a means of pressuring or intimidating the Court. The Commission takes no position on the validity or strength of these claims. Mirroring the broader public debate, there is profound disagreement among Commissioners on these issues. We present the arguments in order to fulfill our charge to provide a complete account of the contemporary Court reform debate.
I don’t think that was the answer Democrats were seeking. The non-position was reiterated in the report (at p. 83-84):
As we noted at the outset of this there is profound disagreement among Commissioners over whether adding Justices to the Supreme Court at this moment in time would be wise . As a Commission we have endeavored to articulate the contours of that debate as best as we understand them, without purporting to judge the weight of any of the arguments offered in favor or against calls to increase the size of the Court.
So court packing is dead? Just you wait. If SCOTUS overturns Roe v. Wade in the Mississippi abortion case, well, the screams could become, ahem, an insurrection.
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